Kimutwol v Barasa & 5 others (Environment and Land Case 57 of 2019) [2026] KEELC 4361 (KLR)

(2) Cancellation of Land Titles No. Trans Nzoia/Suwerwa/416, 1729, and 1730 issued in favour of the 1st, 6th, and 5th defendants. (3) Reinstatement of his Land Title No. Trans Nzoia/Suwerwa/240. (4) Permanent injunction 2. The plaintiff contends that at all material times, he was the legal and duly registered owner of Land Title No. Trans Nzoia/Suwerwa/240, whose title was issued to him in 1995. The plaintiff avers that in 2019 or thereabouts, he discovered that the 1 st defendant, in collusion with the 2 nd and 3rd defendants, had proceeded to irregularly and illegally subdivide the land without his knowledge consent, resulting in two land titles. and Trans Nzoia/Suwerwa/416 and 417, in favour of the 1st defendant, who obtained a title deed on 3/4/2019, and the latter was left under his name. 3. The plaintiff avers that the 1st defendant’s title was further illegally, subdivided into irregularly, Land and Title in collusion No. Trans Nzoia/Suwerwa/1729 and 1730, and both were transferred and registered in the names of the 6 th and 5th defendants, respectively. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 2

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4. The plaintiff avers that the foregoing subdivisions and transfers were irregular and illegal in that they were done without his consent or knowledge, the register, land control board consent, and spousal consent were not sought and obtained, and that due process was not followed. 5. The 1st defendant opposed the suit through a preliminary objection and an amended defence and counterclaim dated 28/11/2019. 6. The 1st defendant averred that he lawfully and legally reclaimed the rightful land measuring 8 acres; hence, the question of trespass does not arise. 7. The 1st defendant averred that sometime in 1989, he filed a Cherangany Land Disputes Tribunal case against Albert Mulati Wepukhulu, which later became Kitale SRM Land Case No. 7 of 1989, whose award in his favour was adopted as a decree of the court and was unsuccessfully appealed against by the plaintiff in Eldoret HCCA No. 106 of 1993, confirming him as the genuine owner of the 8 acres, making the defendant instant avers suit that he res has judicata. been The in 1 st open, continuous, and uninterrupted use, possession, and JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 3

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occupation of the 8 acres for over 12 years by way of adverse possession. 8. The 1st defendant avers that he is the rightful registered proprietor of L.R. No. Trans Nzoia/Suwerwa/416 since 12/2/2007, by virtue of being the legal administrator and in trust for the estate of Jackson Barasa (deceased). 9. The 1st defendant avers that there was also Kitale DMC No. 96 of 1972, concluded on 30/5/1972, making this suit time-barred. 10. By way of a counterclaim, the 1st defendant avers that, being the lawfully registered owner of Land Title No. Trans Nzoia/Suwerwa/416, measuring 8 acres, he should be declared as the true owner and protected by way of a permanent injunction restraining the plaintiff from laying claim to or interfering with his use, possession, and occupation in any manner. 11. The 5th and 6th defendants opposed the suit through a statement of defence dated 28/5/2021. They denied that the plaintiff purchased the land known as Trans Nzoia/Suwerwa/240 in 1972, as alleged or at all. The 5th and 6th defendants averred that the register for Land Title No. Trans Nzoia/Suwerwa/240 was JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 4

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opened on 13/3/1990 in the name of the defunct Settlement Fund Trustees; thereafter, on 31/1/1995, it was transferred to the plaintiff. 12. The 5th and 6th defendants aver that on 3/4/1996, a restriction was placed on Land Title No. Trans Nzoia/Suwerwa/240, until Civil Case No. 7 of 1986 and No. 106 of 1993 were finalised. The 5th and 6th defendants aver that the restriction was removed on 13/2/2007, leading to the subdivision of Land Title No. Trans Nzoia/Suwerwa/240 into Land Titles No. Trans Nzoia/Suwerwa/2416 and 417. Therefore, the 5th and 6th defendants deny the allegations that the plaintiff has been in occupation of the initial mother title land for over 40 years. 13. The 5th and 6th defendants aver that the subdivision was done on 13/2/2007, and any claim to recover the initial land title ought to have been brought before the lapse of 12 years and thereafter with leave of court. 14. The 5th and 6th defendants aver that before the purchase and subdivision of the initial parcel or any of the resultant subdivisions, they had conducted due diligence to verify the ownership of the land; hence, JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 5

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they are bona fide purchasers for value without notice of any defects in the title. 15. The suit was opposed by the 2nd, 3rd, and 4th defendants through a statement of defence dated 15/1/2023. It was averred that the plaintiff was issued with a title deed on 31/1/1995 and a charge registered for Kshs.2,800/= and was later discharged, and a subsequent charge in favour of Kenya Commercial Bank was registered against the title on 4/3/1996. 16. The 2nd, 3rd, and 4th defendants aver that the title was closed on 13/2/2007 on subdivision to Parcels No. 416 and 417, thereafter the 1st defendant obtained a title deed on 13/2/2007 and was later re-issued on 3/4/2009, following a Gazette Notice No. 13291. 17. The 2nd, 3rd, and 4th defendants aver that they made entries in contention on the title registers absolutely in good faith and under an honest and reasonable belief. Further, the 2nd, 3rd, and 4th defendants aver that the registration leading to the creation of Trans Nzoia/Suwerwa/1729 and 1730 was done in good faith and upon certifying that the necessary documents were duly executed and availed, and upon compliance with all the necessary procedural JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 6

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requirements; hence, the 2nd defendant bears no fault. 18. The 2nd, 3rd, and 4th defendants also attack the suit as defective, untenable, and raising no cause of action against them. 19. At the hearing, Chemweno Kimutwol testified as PW1. He relied on witness statements dated 14/8/2019 and later amended on 13/2/2023 as his evidence-inchief. 20. PW1 relied on documents in the list dated 14/5/2019, namely a copy of the title for Trans Nzoia/Suwerwa/240 issued on 31/1/1995, as P. Exhibit No. (1), an application for LCB Consent Ref. No. N2/3/4/C/19 as P. Exhibit No (2), certificate of consent dated 13/7/1972, P. Exhibit No. (3), registration of transfer dated 31/7/1972 as P. Exhibit No. (4), forwarding letter dated 26/1/1971 as P. Exhibit No. (5), letter of consent dated 30/3/1990, P. Exhibit No. (6), a copy of a green card for parcel No. 240 as P. Exhibit No. (7), official search certificate dated 9/8/2019, P. Exhibit No. (8), and lastly an official search certificate dated 9/8/2019 as P. Exhibit No. (9). JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 7

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21. PW1 told the court that he made an entry onto the land after buying the land from the 1st defendant in 1972 and vacated the land together with his workers. PW1 admitted that he had sued the 2nd defendant’s late father for not vacating the land, but unfortunately, he passed away before the suit was concluded. 22. PW1 said that he has sued the government for illegally and unprocedurally colluding in allowing the subdivision and transfer of his land to the other defendants in the alleged execution of a Land Dispute Tribunal (LDT) decree. 23. PW1 admitted that he bought the land while still in the name of the Settlement Fund Trustees. PW1 admitted that the land used to have pending disputes, going by the copy of the record. PW1 said that the LDT had no jurisdiction to deal with the land; otherwise, he was not involved in those suits at the time. 24. PW1 said that he was not privy to the entries made on the title register to subdivide his land. Asked about the gazettement to invalidate his title by the Land Registrar, PW1 said that he never challenged JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 8

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the same before any court of law, including the LDT decree. 25. PW1 said that there was a time he reported to the area chief to have the 1st defendant vacate his land. PW1 said that all the subdivisions and transfers of the entire 16 acres of land in favour of the 1 st, 2nd, 5th, and 6th defendants were done without his knowledge or consent. 26. PW1 said that after the 1st defendant sold the land to him in 1972, he refused to remove his tenants from the land. PW1 said that he was neither aware nor notified of the cancellation of his title through a gazette notice, nor of the intended subdivisions or transfers affecting his land title No. 240. 27. Further, PW1 said that he was also not summoned to attend the LDT proceedings. PW1 said that he is the one who cleared the loan with the Settlement Fund Trustees and not the 1st defendant. 28. Peter Barasa testified as DW1. witness statement dated He relied on a 29/11/2019 as his evidence-in-chief. DW1 also produced a copy of a title deed for Trans Nzoia/Suwerwa/416 as D. Exhibit No. (1), official search certificate dated 29/10/2018, D. Exhibit No. (2), Judgment in Kitale JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 9

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DMCC No. 96 of 1972, D. Exhibit No. (3), proceedings in LDT No. 7 for 1989, D. Exhibit No. (4), Land Case No. 7 of 1989, and a ruling as D. Exhibit No. (5) and (6), judgment in Kitale HCCA Appl. No. 106 of 1993, D. Exhibit No. (7), decree in Eldoret High Court, D. Exhibit No. (8), and a letter dated 14/8/2006 as D. Exhibit No. (9). 29. DW1 briefly told the court that he is lawfully occupying the Parcel No. 416 measuring 8 acres, whose acquisition, as indicated in his defence and counterclaim, has been subject to numerous litigations as captured in his Exhibits No. (1) - (9). 30. DW1 said that in Case No. 96 of 1972, the plaintiff had sued his late father, while the LDT case was also against the plaintiff, who was unable to overturn the award all the way to the Eldoret Court. DW1 said that it is after all these processes that he lawfully obtained his title deed based on the decree, and so was the plaintiff’s title for Parcel No. 417. 31. DW1 said that his late father was the first one to purchase the land from Albert Mulati, as confirmed in the LDT award, which had the proceedings produced as D. Exhibit No. (4) and (5), which show that the plaintiff was entitled to 15 acres only. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 10

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32. DW1 denied that, as at the time the subdivision occurred in 2007, his decree dated 1990 had become stale. DW1 said that though the land was still in the name of the Settlement Fund Trustees up to 2007, they had not been joined as a party in the LDT suit. 33. Aggrey A. Linakha testified as DW2. He relied on a witness statement dated 7/3/2022 as his evidencein-chief. DW2 relied on a list of documents dated 1/3/2022. The Exhibits produced were a copy of the title deed for Trans Nzoia/Suwerwa/416, D. Exhibit No. (10), sale agreement dated 9/5/2011, D. Exhibit No. (12), certificate of official search dated 22/12/2014, D. Exhibit No. (13), sale agreement dated 29/12/2014, D. Exhibit No (14), title deed for Trans Nzoia/Suwerwa/1730 as D. Exhibit No. (15), land sale agreements dated 2/1/2015, 16/6/2015, and 27/12/2015, as D. Exhibit No. (16), (17), and (18), photographs, D. Exhibit No. 19(a), (b), (c), and (d), letter of consent dated 16/5/2019, D. Exhibit No. (20), fee receipts issued on 8/5/2019 as D. Exhibit No. (21), an application for LCB consent, LCB No. 3 of 2019, D. Exhibit No. (22), transfer form dated 28/8/019 JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 11

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as D. Exhibit No. (23), letter dated 26/6/2019 as D. Exhibit No. (24), letter dated 9/5/2019 as D. Exhibit No. (25), Postal Money Order Serial No. XX5649196 for Kshs.3,480/= as D. Exhibit No. (26), and a statutory declaration dated 21/12/2018 as D. Exhibit No. (27). 34. DW2 told the court that he bought the land as offered to him by the 1st defendant, procedurally and lawfully, after conducting due diligence and establishing that he was the registered owner. DW2 told the court that the gazettement was not objected to, hence the issuance of a fresh title deed. 35. DW2 said that he was not aware of the previous litigation over the land when he bought the land. DW2 said that the plaintiff was not in occupation of the land when he bought it; otherwise, he only knew his brother Silvester Mutwol, who occupies the adjacent land. 36. DW2 said that he bought the land in bits with effect from 2014 and followed due process in acquiring the title on 3/4/2019. DW2 told the court that he found some tea on the land before he took vacant possession. DW2 said that since taking vacant JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 12

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possession, he had utilised the land uninterrupted by the plaintiff. 37. Sifuna Okumu testified as DW3. He relied on a witness statement dated 7/3/2022 as his evidencein-chief. He relied on documents produced by DW2. DW3 told the court that he bought his land in 2015, measuring one and a half acres, as per sale agreements dated 16/5/2015 and 2/1/2015. 38. DW3 said that he had initially conducted an official search against the title register, which showed the registered owner as the 1st defendant. DW3 said that he has yet to apply for the transfer of the land to his name due to the pending suit. DW3 said that the photographs before the court confirm that he has affected developments on the land. 39. Jared Sharon testified as DW4. As the Deputy Land Registrar, Trans Nzoia County, DW4, relied on a list of documents green dated cards 15/11/2023, for namely certified No. Trans Title Nzoia/Suwerwa/240, 416, and 417 in the name of the plaintiff, the 2nd defendant, and the plaintiff, which were marked as D. Exhibit No. 29(a), (b), and (c). JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 13

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40. PW4 told the court that D. Exhibit No. 29(a) was subdivided on 13/4/2007. According to DW4, on 3/4/1996, a restriction had been registered against the title register of Parcel No. 240 until Civil Cases No. 7 of 1989 and No. 106 of 1993 were finalised. 41. DW4 said that on 13/2/2007, the said restriction was lifted through an order in Land Case No. 7 of 1989, and the title was closed on subdivision the same day, giving rise to parcel Nos. 416 and 417 in the name of the plaintiff. Before a transfer was effected to Peter Baraza, Parcel No. 417 remained in the name of the plaintiff. 42. DW4 said that from 2007 to 2019, there was no order served upon the Land Registrar to effect any change to the title register. DW4 said that from the copy of records, the original parcel No. 240 was acquired from the initial owner on 31/6/1995 by the plaintiff, measuring 6.8 Ha. Similarly, DW4 said that parcel No. 416 is 3.23 Ha while parcel No. 417 is 3.36 Ha. 43. DW4 said that from the copy of the records before the court, the name of Albert Mulati is missing as a one-time owner of the land. DW4 said that as of 1989, the initial parcel was held by the defunct JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 14

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Settlement Fund Trustees. DW4 could not tell who had registered the restriction as per Entry No. (5) in the copy of records produced as D. Exhibit No. 29(a). 44. Equally, DW4 said that she did not have before the court a copy of the decree or order as per Entry No. (5) and (6). DW4 said that the basis of subdivision as per Entry No. (7) in the copy of the record, is not indicated; otherwise, it must have been attached to the mutation form. 45. Equally, DW4 said that entries No. (6), (7), and (8) of D. Exhibit No. 29(a) bear no dates when the said orders or decree were issued. DW4 clarified that she was unable to tell from the entries if the plaintiff was a party to those cases, orders, or decrees. DW4 said that she was also unable to tell from the entries if the plaintiff was aware of the said entries or if he was notified or requested to surrender the original title deed for cancellation before the subdivisions and transfers could be effected, save for the Kenya Gazette before the court. 46. DW4 said that the copy of the record shows there was an executive officer of the court to sign the subdivision of the parcel No. 240 to parcel Nos. 416 JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 15

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and 417. DW4 said that her records were silent on whether leave was sought and obtained to implement the decree after 12 years. 47. After the close of the defence case, parties were directed to put in written submissions by 30/4/2026 and to appear for highlighting on 30/4/2026. The plaintiff relies 30/3/2026, on written isolating six submissions issues for dated the court’s determination. 48. The plaintiff submits that initially, the 1 st defendant was the allottee of the land by the Settlement Fund Trustees, and when he defaulted on paying the loan, he sold the land to the plaintiff at Kshs.7,500/=, who paid a deposit of Kshs.5,000/= and directly paid the balance to the Settlement Fund Trustees to clear the loan, making the plaintiff the new allottee, after handing him vacant possession in 1972. 49. The plaintiff submits that the 1st defendant’s father, Jackson Barasa, and his family, the initial licensee of the initial allottee, vacated the land, as shown by the LDT proceedings, as produced as D. Exhibit No. (4). The plaintiff submits that the LDT award giving the 2nd defendant 8 acres of land had no validity in law since the land belonged to the Settlement Fund JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 16

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Trustees, and by extension, the plaintiff, after he had cleared the loan on behalf of the initial allottee, and that the plaintiff was also not a party to the proceedings. 50. The plaintiff submits that the land was only registered formally in the name of the Settlement Fund Trustees on 13/3/1990 and was formally also discharged and transferred to the plaintiff on 31/1/1995, any implementation of the LDT award by the 2nd and 3rd defendants on 13/2/2007 by subdividing the land into two parcels and the transfer of L.R. No. 416 to the 2nd defendant, was without the consent or knowledge of the plaintiff and further was irregular or wrongful for the award was not only an illegality but also statute barred. 51. The plaintiff submits that the court has the jurisdiction to examine the legality and regularity of the award by the panel of elders. 52. As to whether the suit is res judicata, the plaintiff urges the court to find that the suit is not res judicata, going by the principles set out in John Florence Maritime Services Ltd -vs- Cabinet Secretary Transport & Infrastructure & Others [2021] KESC 39 [KLR] and in Dina Management JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 17

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Ltd -vs- County Government of Mombasa & Others [2023] KESC 30 [KLR], given that the identity of the parties, issues for determination are not the same, that the plaintiff was not party to Kitale SRMC Land Case No. 7 of 1989, and that Eldoret HCCA No. 106 of 1993 was not a decision on merits or final as regard the claim between the parties. 53. The plaintiff urges the court to approach this matter with an open mind, being alive to the changes in law and the attendant institutional changes with respect to the adjudication of the land disputes between 1989 and 2019. Reliance is placed on Mary Kerubo Ogoti -vs- the Chief Magistrate’s Court, Kisii & Others [2019] eKLR. 54. The plaintiff submits that the amended plaint seeks a declaratory reliefs which this court has powers under Article 23 of the Constitution to grant, by breathing life into the spirit and the letter of the Constitution by granting an appropriate remedy in view of the circumstances of this specific case and not being clogged by procedural technicalities, due to the legal wrong exhibited herein, without taking the view that jurisdiction compartmentalized in the name of either JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 18

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a civil court, judicial review court or constitutional court. 55. The plaintiff submits that it would be a rigid and extremely conservative approach to our judicial services that may end up emasculating the liberality and progressiveness of the Constitution. Instead, the plaintiff urges the court to take the view that it is an agent of the constitution, the constitutional tenets should always ring louder in the court’s ears, heart, and mind by not imagining that constitutional questions can only be addressed by way of a formal constitutional petition, judicial review within the pre2010 mindset that judicial remedies could only issue in judicial review applications, otherwise, it should be possible for an administrative or quasi-judicial decision to be quashed either in civil suit or a constitutional petition, so long as it is proved it offends the Bill of Rights. 56. The plaintiff urges the court to find that it is properly seized of jurisdiction to render the determination on the merits on this issue. The plaintiff submits that jurisdiction as defined in Words and Phrases Legally Defined Vol. 3(1) page 113 and in Macharia & Another -vs- Kenya Commercial JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 19

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Bank Ltd & Others SC Civil Appl. No. 2 of 2011 did not clothe the panel of elders under the repealed Magistrates Jurisdiction Amendment Act 1981 and the Statute Law (Misc. Amendment) (No. 2) Act, 1984, with entertaining disputes from contracts of sale and title to land. Reliance is placed on M’Marete -vs- Republic & Others, Court of Appeal, Nyeri, Civil Appeal No. 259 of 2000 [2004] eKLR. 57. In this case, the plaintiff submits that the tribunal had no power to order the subdivision of a titled land parcel No. 240, rendering the award a nullity. 58. The plaintiff submits that by doing so, the panel of elders offended the plaintiff’s fundamental rights under Article 17 of the Universal Declaration of Human Rights 1948, Article 2(5) and (5), and Article 47 of the Constitution. Reliance is placed on Republic -vs- Chief Immigration Officer [1976] 3 AER 843, Attorney General -vs- Ryan [1980] AC 718. The Management of the Committee of Makondo Primary School & Another -vs- Uganda National Examination Board, HC Civil Misc. Appl. No. 18 of 2010 and Sangram Singh vs- Election Tribunal, Koteh, AIR 1955 SC 664. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 20

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59. The plaintiff submits that the decree made on 18/1/1989 appears to have been implemented on 13/2/2007, going by D. Exhibit No. 29(a), (b), and (c), which was more than 12 years after it was issued. 60. The plaintiff submits that implementing the same without leave of court when it was already timebarred offended the law, making it a nullity. Reliance is placed on Waituika -vs- Waituika: Waituika & Others (Third Party) ELC Appeal No. E006 of 2022 [2024] KEELC 1505 [KLR] and M’Ikiara M’Rinkanya & Another -vs- Gilbert Kabeere M’Mbijiwe [2007] eKLR. 61. The plaintiff submits that, notwithstanding that the decree was a nullity, still the 2nd and 3rd defendants chose to register 8 acres in favour of the 2nd defendant and only gave the plaintiff 8 acres contrary to the decree. 62. As to whether the 5th and 6th defendants’ titles to the suit land are protected by law, the plaintiff submits that there was no proof of payment of consideration, the 2nd defendant has no capacity to transact over the land, and the settler had no better title to dispose of, as there was a pending dispute over the same. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 21

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63. The 2nd defendant relies on written submissions dated 5/5/2026. The 2nd defendant submits that the plaintiff seeks to re-open concluded litigations given that following the adoption of the LDT award on Kitale SRM Land Case No. 7 of 1989, the plaintiff filed review, setting aside proceedings and an appeal, all of which were dismissed, leading to a title deed in his favour of 13/2/2007, as the legal administrator and trustee of the estate of Jackson Barasa (deceased) which title remains valid and protected. Therefore, the 2nd defendant submits that the court has no jurisdiction to entertain a suit which is res judicata as held in Waithaka -vs- Attorney General & Others [2023] KEELC 707 [KLR]. 64. The 2nd defendant submits that under Section 34(1) of the Civil Procedure Act, and Section 4(4) of the Limitation of Actions Act, all questions arising between the parties in the suit relating to execution, discharge or satisfaction of the decree ought to be determined by the executing court and not by a separate suit and so is the challenge of the decree before expiry of 12 years. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 22

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65. The 2nd defendant submits that the plaintiff has failed to discharge the burden of proof to show that the decree was invalid and that there was an unlawful execution of the same. The 2 nd defendant submits that his title remains lawful and indefeasible and that the plaintiff has not succeeded in impeaching the same. Reliance is placed on Migwambo (Suing as the legal Peterlis administratrix Migwambo of Amolo the estate (Deceased) of -vs- Ochiel & Others [2025] KEELC 8481 [KLR] and Arthi Highway Developers Ltd -vs- West End Butchery Ltd & Others [2015] KECA 816 [KLR]. 66. The 2nd defendant submits that the plaintiff has been unable to substantiate his claim to be entitled to the reliefs sought for cancellation of title, eviction, injunction, mesne profits and damages since a valid title exists, no proof of superior right to the land is available, mesne profits are like special damages requiring strict pleading and proof as held in Attorney General -vs- Halal Meat Products Ltd [2016] KECA 306 [KLR], and lastly no tortious or unlawful conduct has been established against him to constitute general damages. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 23

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67. The 2nd defendant submits that, in view of his documentary evidence and lack of impeachment of his title, the counterclaim should be allowed for him to continue to enjoy, use, possess, and occupy his land. 68. The court has not come across submissions filed by the 5th, 3rd - 6th defendants. Be it as it may, the law is that parties are bound by their pleadings, and issues for the court’s determination flow from the pleadings. Courts determine disputes within the framework of the pleadings and issues framed by the parties. 69. The issues calling for my determination are: (1) If the plaintiff’s suit discloses a known cause of action. (2) If the suit by the plaintiff is res judicata. (3) If the plaintiff has proved that the subdivision and transfer of two titles out of Title No. Trans Nzoia/Suwerwa/240 and its resultant subdivisions, transfers, and registration in favour of himself, the 1 st, 5th, and 6th defendants by the 2nd and 3rd defendants were irregular and illegal. (4) If the plaintiff is entitled to the reliefs sought. (5) If the 1st defendant is entitled to the reliefs sought in his counterclaim. (6) What is the order as to costs? JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 24

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70. A cause of action is an act on the part of the defendant that gives the plaintiff reason to complain, as was held in DT.C. Dobie & Co. (K) Ltd -vs- Muchina [1980] eKLR. In this suit, the primary pleading by the plaintiff is the amended, amended plaint dated 13/2/2023. The cause of the complaint is captured in paragraphs 4A, 5A, 6A, 7A, 8A, 9A, 10A, 12A, 13A, and 13B. 71. It is alleged that the plaintiff obtained a title deed for Trans Nzoia/Suwerwa/240 in 1995, and in 2019, he discovered that it had been subdivided into two portions without his knowledge or consent, resulting in parcels No. 416 and 417. He termed the said changes as irregular, unprocedural, and fraudulent. 72. Further, he avers that Parcel No. 417 remained under his name while Parcel Nos. 1720 and 1730. The plaintiff gave specific particulars of the illegality and irregularity of the subdivision and transfers in paragraph 13B, namely, that, as done without his knowledge or consent, there was no necessary LCB consent or spousal consent, and that due process was not followed. 73. By the time the amended, amended plaint was filed, the 1st defendant had already filed an amended JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 25

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preliminary objection and a statement of defence and counterclaim dated 17/9/2019, raising the issues of res judicata and the circumstances leading to the issuance of the title deed for Land Ref. No. Trans Nzoia/Suwerwa/416 as per D. Exhibit No. (1), judgment in DMCC No. 93 of 1972, D. Exhibit No. (2), LDT proceedings in Land Case No. 7/19, D. Exhibit No. (4), decree and ruling in Kitale SRMC Land Case No 7 of 1989, D. Exhibit No. (5) and (6), decree of the High Court Eldoret in Civil Appeal No. 106 of 1993, D. Exhibit No. (8) and (9). 74. From the pleadings by the plaintiff, it is obvious that in the amended, amended plaint dated 13/2/2023, the plaintiff dropped the initial 1 st defendant from the suit. He also dropped paragraphs (4), (5), (6), (7), (8), (9), (10), (11), (12), and (13) of the initial amended plaint. Further, the plaintiff removed the initial prayers No. (a), (b), (c), (d), and (g) of the initial plaint dated 14/8/2019 and 15/11/2029. 75. The law is that once a party is allowed to amend a pleading under Order 8 of the Civil Procedure Rules, the new amendment takes precedence over the earlier amendments. Equally, if the opposite party, JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 26

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Order 8 Rule (6) of the Civil Procedure Rules comes into effect. 76. The plaintiff has made submissions touching on the history of the initial land Parcel No. Trans Nzoia/Suwerwa/240 in relation to the 1st defendant, whom he omitted in the current amended, amended plaint, and the decree used by the current 1st defendant to obtain his title. 77. The plaintiff voluntarily amended all the paragraphs touching on that history or those facts in his current plaint. Issues No. (i), (ii), (iii), (iv), and (v) as framed on page 6 of the plaintiff’s written submissions were not pleaded in the amended, amended plaint dated 13/2/2023. As a matter of fact, the plaintiff in the said amendment dropped prayer No. (a), which sought a declaration that the LDT had no jurisdiction to entertain a dispute relating to titled land. 78. In Raila Odinga & Another -vs- IEBC & Others [2017] eKLR, the court said that in the absence of pleadings, evidence, if any, produced by the parties, cannot be considered. The court said that a party should not be permitted to travel beyond its pleading. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 27

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79. The court was emphatic that pleadings ensure that each side is fully alive to the questions that are likely to be raised, and they have an opportunity of placing the relevant evidence before the court for consideration. The court said that issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. 80. In the written submissions dated 30/3/2026, the plaintiff has from paragraphs 14-19, 20, 21, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, and 45 on the issue which the court is unable to find there in the plaintiff’s amended, amended plaint. Equally, the court has not seen the plaintiff’s primary pleadings against the preliminary objection and the amended defence and counterclaim by the 1st defendant, where the plaintiff specifically attached the title deed held by the 1 st defendant as a child of a flawed, irregular, illegal, and a null award, and decree of the court which dwelt with titled land contrary to the LDT law at the time. 81. A counterclaim is a standalone suit. It succeeds or fails independently of the fate of the primary suit. Order 7 Rule 17(3) and (4) of the Civil Procedure JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 28

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Rules applies to a plaintiff who fails to file a defence to a counterclaim. The 1st defendant, as the 2nd defendant before the amended, amended plaint was filed, has raised a jurisdictional question through a preliminary objection dated 28/11/2019. It is also raised in paragraphs 6, 7, 8, 9, 10, 11, 12, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,25, 26, and 27 of the amended defence. 82. The issue is also raised in the 2 nd, 3rd, and 4th defendants’ defence dated 15/11/2023 that the plaintiff’s suit raises no known case or action. Further, paragraphs 6, 13, and 14 of the statement of defence by the 5th and 6th defendants raise the issue of time limitation and hence the jurisdiction of this court to entertain the plaintiff’s suit. 83. In view of the pending suits, and a valid decree of the court that gave rise to the titles No. 416 and 417, and its resultant subdivision from the initial Land Title No. Trans Nzoia/Suwerwa/240, which the plaintiff urges the court to find that it was irregularly and unprocedurally subdivided and registered in the resultant subdivision in favour of the 1 st, 5th, and 6th defendants by the 2nd and 3rd defendants. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 29

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84. A court’s jurisdiction flows from either the Constitution or a Statute or both. A court has held in Macharia & Another -vs- KCB Ltd & Others, SCOK Civil Appl. No. 2 of 2011 can only exercise a jurisdiction as conferred upon it by law. The 1 st defendant has raised the plea of res judicata against the suit raised by the plaintiff. To qualify as a defence, the claimant must satisfy the elements of res judicata as set out in John Florence Maritime Services Ltd & Another -vs- Cabinet Secretary & Infrastructure & Others [2021] KESC 39 [KLR] and in Maina Kiai & Others -vs- IEBC [2017] eKLR. 85. The burden was on the 1st, 5th, and 6th defendants to demonstrate that there was a former judgment which was final, it was on the merits, that the parties were identical, the subject and the cause of action in the current suit and in the former suit are similar, and that this court and the former suit have jurisdiction to hear and determine the matter. 86. The plaintiff has submitted that this suit does not offend the doctrine of res judicata since he was not a party to the Kitale SRMC Land Case No. 7 of 1989; hence, the suit cannot be used to obfuscate JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 30

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his pursuit of justice. Further, the plaintiff submits that in Eldoret HCCA No. 106 of 1993, there was no final determination on the merits of the dispute. More importantly, the plaintiff urges the court to be guided by Mary Kerubo Ogot -vs- Chief Magistrate’s Court Kisii & Others [2019] eKLR, to make a finding that the LDT award was a nullity and that in this case the plaintiff is seeking to right the wrongs or illegalities committed against him in dealing with his land. 87. The plaintiff urges the court to be liberal and ignore the compartmentalization of its jurisdiction. On the other hand, the 1st defendant submits that the plaintiff, from the exhibits tendered, is improperly seeking to reopen concluded litigation, which he unsuccessfully applied for review, setting aside, and through an appeal under the defunct LTD Act. 88. The 1st defendant submits that whereas the plaintiff seems to be questioning the legality, implementation, and execution effect of a decree arising from earlier proceedings, the proper legal remedy, if any, lies within the original proceedings, rather than by instituting a fresh collateral suit as JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 31

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provided by Section 34(1) of the Civil Procedure Act. 89. The 1st defendant also submits that the plaintiff’s suit is also caught by Section 4(4) of the Limitation of Action Act, for it questions a decree after 12 years. Reliance is placed on Waithaka -vs- Attorney General & Others [2023] KEELC 707 [KLR] and Onywoki Okondo -vs- Samuel Nyarungo [2019] KEELC 2336 [KLR]. 90. The court has looked at the judgment in Kitale District Magistrate’s Court No. 93 of 1972. The suit was not determined on the merits as regards the eviction sought by the plaintiff in the matter. The trial court made a finding that until the Ministry of Lands and Settlement had clarified who the rightful allottee was, the plaintiff could not be granted an eviction order. 91. In the decree dated 30/1/1990, in SRMC Kitale Land Case No. 7 of 1989, the 1st defendant was decreed 8 acres to hold in trust. There is evidence that the plaintiff was to continue occupying the side where he had erected a house and other developments. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 32

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92. In the ruling dated 14/5/1992, the plaintiff had sought a review of the order dated 30/1/1990, which the court declined. It is out of this refusal that the plaintiff filed an appeal at Eldoret High Court, which was dismissed on 20/3/1995, paving the way for the execution of the decree by the Executive Officer to subdivide the land into two portions. 93. The next issue is proof of illegality. The plaintiff, in paragraphs 6A, 7A, 8A, 9A, 10A, and 12A of the amended amended plaint, faults the said subdivision and transfer as both illegal, fraudulent, and irregular, which he only discovered in 2019. 94. The plaintiff relies on P. Exhibit No. (1), showing that he became the title holder on 31/1/1995. He relies on P. Exhibit No. (2) which is a transfer between him and the initial. It is missing details. P. Exhibit No. (3) and (4) are certificates of consent and a transfer dated 31/12/1972, accompanied by a forwarding letter dated 31/7/1972, produced as P. Exhibit No. (5). 95. P. Exhibit No. (7) is a copy of the record which shows that the title register for Trans Nzoia/Suwerwa/240 was opened on 13/3/1990 in the name of the Settlement Fund Trustees. It means JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 33

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P. Exhibit No. (2), (3), (4), and (5) had not been perfected up to 13/3/1990 in favour of either the plaintiff or the initial 1st defendant. 96. There is also no evidence that before 13/3/1990, Plot No. 240 was titled land to disqualify it from falling under the defunct Land Disputes Tribunal Act before 13/3/1990, when the register was opened. If that had been the position, nothing would have stopped the plaintiff, who was a party to D. Exhibit No. (3), (5), (6), (8), and (9) from raising the issue in limine that the court lacked jurisdiction to entertain a dispute on titled land. 97. D. Exhibit No. (4) which are the proceedings of the panel of elders were undertaken on 2/8/1989. Page (6) shows that the plaintiff was a party to the proceedings. Page (7) shows the observation of the panel that Plot No. 240 Suwerwa Settlement Scheme had not been registered and that there was an outstanding loan to the Settlement Fund Trustees. 98. The award was later adopted as a decree of the court as per D. Exhibit No. (15) on 18/1/1990. This was before the register for the plot was opened on 13/3/1990. Efforts by the plaintiff to seek review of JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 34

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the order and appeal were unsuccessful, as shown by D. Exhibit No. (6), (8), and (9). 99. The court has taken the liberty of keenly looking at the initial plaint, the amended plaint, and the current plaint vis-à-vis the witness statement dated 14/8/2019 by the plaintiff. In paragraph 13 of the initial plaint, the issue of the jurisdiction of the Land Disputes Tribunal was raised. It is also raised on page 1 of the witness statement. The amended, amended plaint has, however, sought to change the ground of particulars of illegality and irregularity from the initial ones in paragraph 13 of the initial plaint to the current paragraphs 8A, 9A, 10A, 11A, 12A, and 13A and B. 100. From the evidence tendered by way of previous court proceedings, decisions, and orders, the plaintiff is being economical with the truth. This court has been able to trace the fingerprints and the footprints of the plaintiff right from the Land Disputes Tribunal proceedings, where he gave evidence, to the Eldoret High Court, where he lost on appeal. There is no evidence that the plaintiff escalated his objection to the Court of Appeal. There is also no evidence that the plaintiff challenged the decree following dismissal JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 35

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of his appeal on account of legality or jurisdiction under Section 34 of the Civil Procedure Act. 101. The plaintiff, as of the dismissal of his appeal, knew of the existence of the lower court decree. There is no evidence that he sought and obtained a stay of execution of the decree, even after obtaining a title deed of the land during the subsistence of live court proceedings, which are subject to the doctrine of Lis pendens. 102. The plaintiff knew that there was a default clause that, in his absence from the execution, the transfer or subdivision forms could be executed by the Executive Officer of the court. He who alleges must prove. Illegality and irregularity must be proved on a balance higher than in ordinary suits, as held in Arthi Highway Developers Ltd -vs- West End Butchery (supra). 103. The plaintiff wants the court to turn a blind eye to a valid decree of its own court, where the plaintiff lost, and find it irregular and a nullity. There is evidence that after the award was made, a decree of the court, the plaintiff sought a review and also an appeal against the order dismissing his application for review. He now wants to turn around and deny JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 36

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being privy to or aware of the fact that he was a judgment debtor in the matter. 104. Having perused the previous proceedings, court decrees, or orders, there is no evidence that the issues raised in the amended, amended plaint were determined previously. The cause of action is pleaded as having occurred in 2019. Therefore, the plea of res judicata fails. Legality of title must be traced to the root, as held in Sehmi & another -vsTarabana Company Ltd & 5 others [2026] KESC 15 (KLR). 105. In Clark -vs- Njoroge & 3 Others Civil Appeal No. 340 of 2019 [2026] KECA 718 [KLR] (10th April 2026) (Judgment), the court cited Elijah Makeri Nyang’wara -vs- Stephen Mungai Njuguna & Another [2013] eKLR, that a title may be impeached even in the hands of an innocent party if it is shown that it was obtained illegally, unprocedurally, or through a corrupt scheme. 106. Section 80 of the Land Registration Act provides that where a title is shown to have been obtained unprocedurally or illegally, the court may order the Land Registrar to rectify the register. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 37

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107. In this suit, the Land Registrar has confirmed the version of evidence as tendered by DW1 that there were valid court orders, decrees, and transfer documents in favour of both subdivision and transfer, which were presented to effect the subdivision of title No. Trans Nzoia/Suwerwa/240 into Parcel Nos. 416 and 417. 108. Evidence to show that those subdivision and transfer documents were invalid, nullities, and unprocedural has not been provided by the plaintiff. It is not enough to make an allegation of collusion, illegality, and irregularities in the manner in which the subdivision and transfer occurred. There is no evidence that the plaintiff, after losing his appeal, notified the 2nd and 3rd defendants that he was aggrieved by the decree of the court or raised an objection on execution under Section 34 of the Civil Procedure Act that the Executive Officer of the court and the Land Registrar should not execute, accept, register, and process both the subdivision and the transfer. 109. D. Exhibit No. 29(a) shows that there was an Entry No. (5), which was removed through Entry No. (6) and the title closed for subdivision by Entry No. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 38

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(7). The plaintiff has deliberately not challenged the legality of Entry No. (8), which was a Kenya Gazette notifying him of the changes. 110. D. Exhibit No. 29(b) shows that the register for title No. 416 was opened on 12/2/2007, in the name of the 1st defendant, the same day title No. 417 was opened in favour of the plaintiff. There is no evidence from the copy of the record that there was a caution or restriction on the title register for parcel No. 240, before 13/2/2007, stopping any entries to the register. 111. The plaintiff is blaming the 1st, 2nd, and 3rd defendants for subdividing his land parcel without his knowledge or consent, yet the decree dated 30/1/1990 had ordered the Executive Officer, in case of failure by the plaintiff, to subdivide and transfer the land into two, and to sign on his behalf. The court finds no fault on the part of the 2 nd and 3rd defendants in acting on the documents that were presented to them bearing the strength of a court decree. 112. Further, the court finds that after the plaintiff's appeal was dismissed and a decree dated 8/12/1998 on the strength of D. Exhibit No. (8) and (9), JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 39

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nothing was stopping the issuance of the title in favour of the 1st defendant on 13/2/2007. The decree of the High Court produced as D. Exhibit No. (8) is dated 8/12/1995. Its expiry was to be in 2007. Therefore, the subdivision and transfer in favour of the 1st defendant occurred within the 12 years as provided under Section 4(4) of the Limitation of Action Act. 113. As to whether the plaintiff has succeeded in impeaching the resultant titles held by the 5 th and 6th defendants, the court has already made a finding that there was no notification by way of a caution or restriction lodged by the plaintiff over the title register after obtaining his title on 31/1/1995, for the mother title No. 240. 114. Equally, there is no evidence that the plaintiff, after the 1st defendant obtained title for No. 416 on 13/2/2007, challenged the same or registered a caution or restriction between 2007 and 2019, when the said title was closed for subdivision. 115. D. Exhibit No. 15 shows that the land title for Trans Nzoia/Suwerwa/1730 was issued on 29/8/2019, following a sale agreement produced as D. Exhibit Nos. (12), (14). The purchaser says that JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 40

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he had conducted due diligence as per D. Exhibit No. (10) and (13), showing that the seller had been a registered owner with effect from 13/2/2007, so he had the capacity to dispose of the land. The defendant has also testified and tendered evidence that the plaintiff has never been in occupation of the suit land. 116. This suit was filed on 16/8/2019. There is no evidence that the 1st defendant entered an appearance on 12/9/2019, while the Hon. Attorney General filed an appearance on 5/9/2019. As regards the 6th defendant, D. Exhibit No. (16), (17), and (18) show that the transaction started and was finalised in 2015. The 5th and 6th defendants in paragraph 14 of the statement of defence dated 28/5/2021 plead that they had undertaken due diligence to verify the ownership of the land, hence they are bona fide purchasers for value without notice of any defects to the title. 117. The court, in Sehmi & another -vs- Tarabana Company Ltd & 5 others, Petition No. E033 of 2024 held that the burden of proof that one is an innocent purchaser for value without notice lies on the person claiming it. The court emphasised that a JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 41

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bona fide purchaser must perform reasonable due diligence, which includes inspecting the land and physically searching the land registry. Failure to investigate suspicious circumstances negates a claim of good faith. 118. In this suit, the plaintiff has not shown any evidence that the 5th and 6th defendants engaged in conduct that was unconscionable in the eyes of equity or failed to inquire, or that the property had been established as unlawfully acquired by the father as of 2015. 119. The 5th and 6th defendants' conduct, as per the exhibits produced, has not shown that there existed a rival interest in the suit land which they were aware of or overlooked. The 5th and 6th defendants have produced evidence that they purchased their portions for value and were not aware of any equitable interest or encumbrance against the said title. 120. The plaintiff has not pleaded anything in the amended, amended plaint faulting the bona fides of the 5th and 6th defendants. A reply to the 5th and 6th defendants’ statement of defence was also not filed by the plaintiff. Evidence that the 1 st defendant had JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 42

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no better title between 2007 and 2019 is missing. The court finds that the 5th and 6th defendants fit the bill of innocent purchasers for value without notice of any defect in the title, including those not recorded on the title register. 121. Coming to the 1st defendant’s defence and the counterclaim, the 1st defendant has produced a valid and legally acquired title to his land, which he says his late father and the estate have been occupying since 1972. DW1 has produced exhibits showing that the plaintiff’s efforts to evict his late father from the land in 1972 were unsuccessful. Later on, the 1st defendant succeeded in D. Exhibit No (4) against the initial 1st defendant. 122. The plaintiff was a witness in D. Exhibit No. (4). Efforts by the plaintiff to apply for review and appeal of the Land Disputes Tribunal Award, decree, and order were unsuccessful. The 1st defendant eventually obtained a title to the suit land, which the plaintiff has not been able to impeach since its issuance in 2007. 123. A permanent injunction, otherwise known as a perpetual injunction, is issued after the final determination of the parties' rights to permanently JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 43

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restrain the commission of an act by the defendant to protect the rights of the plaintiff. See Peter Kinuthia Mwaniki & 2 Others -vs- Peter Njuguna Gicheha & Others [2006] eKLR. 124. The 1st defendant has established that he is the registered owner of Nzoia/Suwerwa/416, the title whose No. Trans registration was obtained following a valid decree of the lower court and which was confirmed by the High Court on appeal. The 1st defendant cannot be termed a trespasser on the land. See Lepove Ole Maito -vsLetwat Kortom & Others [2016] eKLR. 125. The court finds that the 1st defendant deserves a permanent injunction, since he has established, on a balance of probabilities, the merits of his counterclaim. 126. The upshot is that I find the plaintiff’s amended, amended plaint dated 13/2/2023 lacks merit. It is dismissed with costs to the defendants. The 1 st defendant’s amended defence and counterclaim dated 28/11/2019 is allowed in terms of prayers (a) and (b), and judgment entered as follows; a)A declaration be and is hereby issued that the 1st defendant is the legal and rightful JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 44

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owner of land parcel number Trans-Nzoia/Suwerwa/416, which measures 3.23 Ha, having been hived off from parcel number Trans-Nzoia/Suwerwa/240. b)An order of permanent injunction is hereby issued restraining the plaintiff, by himself, through his agents, servants, personal representatives, or anyone acting on his behalf, from claiming, interfering, alienating, or dealing in any manner, with land parcel Trans-Nzoia/Suwerwa/416. 127. Costs to both the main suit and the counterclaim to the 1st defendant. 128. Orders accordingly. Judgment dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 8th day of July 2026. In the presence of : Court Assistant - Dennis Mr. Kenei for the plaintiff present 1st defendant absent No appearance for the 2nd, 3rd, 4th, 5th, and 6th defendants JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 45

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HON. C.K. NZILI JUDGE, ELC KITALE. JUDGMENT: KITALE ELC NO. 57 OF 2019 – D.O.D. – 08/07/2026 46

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